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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Crawford v Ritchie [1837] CS 16_107 (28 November 1837) URL: http://www.bailii.org/scot/cases/ScotCS/1837/016SS0107.html Cite as: [1837] CS 16_107 |
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Page: 107↓
Subject_Curator Bonis — Trust — Expenses—
The trustee under a trust-deed of settlement having executed an assignation to the rents in favour of a third party, on the narrative of advances made by him for behoof of the trust, and for liquidation thereof; and on the trustee's death a curator bonis having been appointed by the Court—Held that the curator bonis had no title, pending a litigation as to the validity of the assignation, to apply for loosing arrestments of the rents used by the assignee, and expenses awarded to the latter—altering on this point the judgment of the Lord Ordinary.
The late Lieutenant Robertson, by trust-deed of settlement, conveyed all his estate, consisting chiefly of certain heritable property in Edinburgh, to the late Captain Barclay and others, as trustees, for the purposes, 1st, Of paying debts, and the expenses of the trust; 2dly, For paying to his sister, Mrs Rennie, the free annual proceeds, or such part thereof as they might deem necessary for the support of her and her family, “declaring that the foresaid provision to my said sister is purely alimentary, and exclusive of the jus mariti of her present or any future husband; and that it shall not be attachable by arrestment or diligence of any kind whatever, nor assignable nor subject to any deeds which either she or her present or any future husband may grant in relation thereto, or debts which they may contract;” and, 3dly, For dividing the property, after Mrs Rennie's death, amongst her children.
Lieutenant Robertson died in 1832. Of the trustees nominated by him, Captain Barclay alone accepted, and he, in 1835, on the narrative of advances made by the respondent, Ritchie, for the maintenance of Mrs Rennie and the family, payment of interest on debts due by the truster, and repairs, &c. on the trust-property, executed an assignation in favour of the respondent, whereby he instituted him and his heirs and donators, his assignees to the rents of the trust-property, for liquidation of his advances, under burden of payment of the interest on the debt, the public burdens, an allowance not exceeding £60 to Mrs Rennie, and a remuneration to Ritchie himself.
Under this assignation, Ritchie levied the rents till the death of Captain Barclay, which took place in May, 1837. Captain Barclay had, before his death, executed a deed of assumption of new trustees; but none of the persons nominated having accepted, the complainer, Crawford, was appointed by the Court curator bonis on the trust estate. A question having arisen between him and Ritchie, which was entitled to levy the rents pending a declarator raised by Ritchie of the validity of the assignation in his favour, (of which also Mrs Rennie threatened and
afterwards brought a reduction), Ritchie arrested the rents in the hands of the tenants. On this, in order to obtain a judgment of the Court on the question above mentioned, the curator bonis presented a bill of loosing arrestments, which, on being advised with answers, the Lord Ordinary refused, adding the subjoined note, * and finding no expenses due. Against the interlocutor, in so far as it did not find him entitled to expenses, Ritchie reclaimed; and
The Court being clearly of opinion that while the assignation stood unreduced the curator bonis had no right to levy the rents, and consequently no title to apply for loosing arrestments thereof, altered the interlocutor, and found Ritchie entitled to his expenses.
Solicitors: James Crawford, Jun. W. S.— Thomas Ranken, S. S. C.—Agents.
_________________ Footnote _________________
* “The proper course in this case would have been for one or other of the parties to have raised a multiplepoinding in the name of the tenant, and so have obtained consignation of the rents, without the necessity either of arrestment, or loosing thereof on caution. The curator bonis is conceived to be substantially a mere successor to the trustee, who has failed by death; and if that trustee could not have claimed a preference over a creditor to whom he had himself granted an assignation to the rents, it would rather seem that the curator must be under a like disability, till the invalidity of the assignation (which is ex facie unobjectionable) is judicially established. The real bar to the curator's right to draw the rents is not the arrestment, but the assignation executed by his predecessor, long before his own appointment. If that assignation was valid, his appointment gave him no right to these rents, any more than it could be to any part of the original trust-estate previously sold to an onerous purchaser; and he has therefore no title or interest to loose the assignee's arrestment, till he instructs that the assignation is bad: That he has an individual interest to subject these rents to his claim of commission is just an additional reason for refusing to let him get them into his hands, so long as the presumption of law is, that the right of the assignee is good, and preferable to his. The bill, therefore, has been refused. But as it appears to the Lord Ordinary that arrestment was not the proper remedy for the assignee, no expenses are given. There should still be a multiplepoinding for the security of all parties, if they cannot agree extrajudicially, that the rents should be consigned, leaving all questions open, as to commission and every thing else.”
